Opinion
2014-283 Q C
11-30-2015
Baljinder Singh, Respondent, v. Utog 2-way Radio, Inc., Appellant.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered October 16, 2013. The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs.
From March 2010 through May 2012, plaintiff worked as a driver for defendant, a corporation which provides a radio-dispatched car service. In this action for damages based upon conversion, breach of contract and unjust enrichment, plaintiff alleged, in his verified complaint, that, over the course of three years, defendant had improperly made weekly deductions from plaintiff's pay, in the total sum of $24,442.03, for plaintiff's rental of a car radio, notwithstanding that plaintiff had already paid $6,565 to a third party, Dan P. Petersen, for this rental.
After issue had been joined, defendant moved for summary judgment dismissing the complaint. In support of the motion, defendant submitted an affidavit by its treasurer, who asserted that weekly deductions were taken from plaintiff's pay, with plaintiff's knowledge and consent, for plaintiff's lease of "radio rights" (i.e., the right to participate in defendant's radio dispatch system) from Petersen, who had authorized defendant to make such deductions. Defendant also submitted an affidavit from Petersen, who stated that plaintiff had never paid him the alleged $6,565 and that plaintiff had agreed to the weekly deductions being taken from his pay. By order entered October 16, 2013, the Civil Court denied defendant's motion.
Where a defendant is the proponent of a motion for summary judgment, it must establish that the "cause of action . . . has no merit" and the motion will be granted if, upon all the papers and proof submitted, the "defense shall be established sufficiently to warrant the court as a matter of law in directing judgment" in defendant's favor (CPLR 3212 [b]). A defendant makesa prima facie showing of entitlement to judgment as a matter of law, by tendering sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this showing has been made, the burden shifts to the plaintiff, who must submit evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the action.
While defendant indicated that the deductions it had made from plaintiff's pay were proper and that plaintiff had consented to them, plaintiff, in asserting that he had paid Petersen directly for the radio and that any deductions made by defendant for the rental of the radio had been "inappropriate," raised material issues of fact requiring a trial of the action. Consequently, the Civil Court properly denied defendant's motion for summary judgment dismissing the complaint.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 30, 2015